Decision Date: August 8, 2017

Panel: Alan Andison

Keywords: Oil and Gas Activities Act – ss. 72(2), 72(7); Administrative Tribunals Act – s. 24(2); preliminary decision; extension of time; appealable decision; pipeline; permit

Olaf and Frances Jorgensen sought to appeal a pipeline permit that the Oil and Gas Commission (“Commission”) issued to Encana Corporation (“Encana”) on March 22, 2017, “as amended” by orders/decisions of the Surface Rights Board. The permit authorizes Encana to construct and operate a pipeline, subject to certain conditions, on land owned by the Appellants. In seeking to appeal the permit, the Appellants argued that the Surface Rights Board had subsequently authorized temporary workspaces and a sump that were not approved in the permit, and which came as a surprise to the Appellants. The Appellants also requested an extension of time to file the appeal pursuant to section 24(2) of the Administrative Tribunals Act, which provides that the Tribunal may extend the time to file an appeal “if satisfied that special circumstances exist”. The appeal was not filed “within 15 days of the day the determination being appealed was made”, which is the appeal period for land owners under section 72(7) of the Oil and Gas Activities Act (“OGAA”).

Encana needed the temporary workspaces because the pipeline right-of-way would not provide enough room for all construction activities. Encana’s application for the pipeline permit identified the workspaces and sump as “associated oil and gas activity”, and Encana’s construction plan showed the proposed pipeline right-of-way, proposed workspaces, and the sump. In addition, the spatial data attached to the pipeline permit showed the outline of the pipelines to be built, pipeline right-of-way, workspaces, and sump. However, the technical specification details in the pipeline permit, which described the location and specifics of the pipeline segments to be built, did not refer to workspaces or a sump.

On May 31, 2017, after the pipeline permit had been issued, the Surface Rights Board issued an order granting Encana a right of entry to, and access across, the portions of the Appellants’ land covered by the pipeline and its right-of-way, as well as six temporary workspaces. On June 2, 2017, the Surface Rights Board amended that order by granting Encana a right of entry to, and access over, part of the Appellants’ land for use as a sump.

On June 30, 2017, the Appellants filed their appeal with the Tribunal. As a preliminary matter, the Tribunal requested submissions from the parties on whether the Surface Rights Board had amended the pipeline permit, and if not, whether the workspaces and/or sump were authorized by the pipeline permit. The Tribunal also requested submissions on whether the extension of time should be granted.

Both Encana and the Commission argued that the Surface Rights Board did not amend the pipeline permit, and only the Commission has the authority to do so under the OGAA. They argued that the Surface Rights Board issues orders under the Petroleum and Natural Gas Act, and its orders are not appealable to the Tribunal. In addition, the Commission maintained that it can authorize activities associated with the construction of pipelines on Crown land, but the Surface Rights Board must authorize such activities on private land.

The Tribunal found that the Surface Rights Board’s orders did not amend the pipeline permit. Only the Commission has the authority to amend a permit under the OGAA. The Surface Rights Board has no authority to do so, and it issued its orders under the Petroleum and Natural Gas Act. Decisions of the Surface Rights Board are not appealable to the Tribunal.

Next, the Tribunal considered whether the workspaces and/or the sump were authorized by the pipeline permit, such that they may be appealed under section 72 of the OGAA. The Tribunal found that the OGAA defines “related activity” to mean an activity that is required for, or facilitates, carrying out an oil and gas activity, and which requires authorization under other the Environmental Management Act, Forest Act, Heritage Conservation Act, Land Act, or Water Sustainability Act. There was no indication that the workspaces or sump required authorization under those Acts, and therefore, they did not fall within the definition of “related activity”. The OGAA does not define “associated activity.” The Tribunal found that there was no basis in the legislation to conclude that the Commission has the authority to permit activities that are associated with the construction of pipelines on Crown land, but not on private land. Moreover, Encana included information about the workspaces and sump in its permit application, and there was no dispute that the workspaces and sump were necessary for the construction of the pipeline. For all of those reasons, the Tribunal held that the workspaces and sump were part of the Commission’s determination to issue the permit authorizing the construction and operation of the pipeline, but the permit did not include a right to access or enter upon the Appellants’ land, which could only be granted by the Surface Rights Board.

Finally, the Tribunal concluded that the extension of time to file the appeal should be granted, because the workspaces and sump ought to have been the subject of notification and consultation before the pipeline permit was issued, but the Commission had advised the Appellants that the workspaces and sump were not covered by the pipeline permit. Furthermore, the Appellants’ filed their appeal within a reasonable time after they realized that the workspaces and sump would be located on their land.

Accordingly, the appeal was accepted as being within the Tribunal’s jurisdiction, and the application for an extension of time to file the appeal was granted.